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-   -   Law, Power, and Bin Laden (Glenn Greenwald & David Frum) (http://bloggingheads.tv/forum/showthread.php?t=6709)

operative 05-12-2011 03:22 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by popcorn_karate (Post 208569)
so did you.

No. And if it came down to Obama and some Republican that I couldn't stand to vote for, I would vote libertarian.

stephanie 05-12-2011 04:17 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208559)
Of course, this will lead the operative to say he meant no TRUE conservative ...

Yeah. I thought about going there too, but figured it wasn't worth the trouble.

operative 05-12-2011 04:42 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by stephanie (Post 208595)
Yeah. I thought about going there too, but figured it wasn't worth the trouble.

I won't say 'true' conservative (rc has the market on that term). I will say "no conservative whose brain was functioning properly" would've voted for Obama, a statist among statists.

handle 05-12-2011 04:44 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by operative (Post 208603)
I won't say 'true' conservative (rc has the market on that term). I will say "no conservative whose brain was functioning properly" would've voted for Obama, a statist among statists.

Oxymoronic phrase!!!!!! I kid! I kid!!!

bjkeefe 05-12-2011 05:08 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by stephanie (Post 208595)
Yeah. I thought about going there too, but figured it wasn't worth the trouble.

Turns out you were right. I see that he's said the same thing using different words ...

Quote:

Originally Posted by operative (Post 208603)
I won't say 'true' conservative (rc has the market on that term). I will say "no conservative whose brain was functioning properly" would've voted for Obama, a statist among statists.

... which I'm sure he'd like to argue about for another twenty-seven posts, in between again calling Chomsky worse than Pol Pot, Bill Maher stupid, Obama a "statist," for me to be banned, and decrying the amount of forum space taken up by pointless bickering.

stephanie 05-12-2011 05:26 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208611)
Turns out you were right. I see that he's said the same thing using different words ...

... which I'm sure he'd like to argue about for another twenty-seven posts, in between again calling Chomsky worse than Pol Pot, Bill Maher stupid, Obama a "statist," for me to be banned, and decrying the amount of forum space taken up by pointless bickering.

Heh.

Of course, I don't think libertarians are conservatives at all. I also note that since I started bitching about "socialist" being used as a blanket insult of everyone left of Grover Norquist, we are now getting the "statist" slam for everyone. It does sound sort of awful and scary, I guess (to those scared by Dukakis being a "card-carrying member of the ACLU," maybe). The idea that Obama is some kind of extremist based on his economic policy is one that, frankly, only an extremist could hold. (I think that the idea of Obama as an extremist at all is ridiculous, of course.)

But my favorite twist of recent days is that, as we've established, the Catholic Church is statist. Statists are not conservatives. Therefore, the libertarians are the real conservatives and the Catholic Church is not conservative at all.

Hmm.

I think we should probably go back to my point about the problems with the labels and how it may depend on the issue and what you prioritize and all of that.

handle 05-12-2011 05:37 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208611)
Turns out you were right. I see that he's said the same thing using different words ...



... which I'm sure he'd like to argue about for another twenty-seven posts, in between again calling Chomsky worse than Pol Pot, Bill Maher stupid, Obama a "statist," for me to be banned, and decrying the amount of forum space taken up by pointless bickering.

Ya forgot simultaneously dissing your tactics, your content, and you, and trying to beat you at your own game... not the first guy to have gone there... not for long... though.... right...?

operative 05-12-2011 06:03 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by stephanie (Post 208617)
Heh.

Of course, I don't think libertarians are conservatives at all. I also note that since I started bitching about "socialist" being used as a blanket insult of everyone left of Grover Norquist, we are now getting the "statist" slam for everyone. It does sound sort of awful and scary, I guess (to those scared by Dukakis being a "card-carrying member of the ACLU," maybe). The idea that Obama is some kind of extremist based on his economic policy is one that, frankly, only an extremist could hold. (I think that the idea of Obama as an extremist at all is ridiculous, of course.)

But my favorite twist of recent days is that, as we've established, the Catholic Church is statist. Statists are not conservatives. Therefore, the libertarians are the real conservatives and the Catholic Church is not conservative at all.

Hmm.

I think we should probably go back to my point about the problems with the labels and how it may depend on the issue and what you prioritize and all of that.

If we could go back to the classical definitions of the terms and recognize libertarians as liberals then it'd be much better.

bjkeefe 05-12-2011 06:46 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by operative (Post 208625)
If we could go back to the classical definitions of the terms and recognize libertarians as liberals then it'd be much better.

Quote:

Originally Posted by bjkeefe (Post 208611)
... which I'm sure he'd like to argue about for another twenty-seven posts ...

Don't do it, Stephanie!

operative 05-12-2011 06:50 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208632)
Don't do it, Stephanie!

It'd also help us arrive at what BJKeefe actually is.

Well, I won't say it.

stephanie 05-12-2011 08:40 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by operative (Post 208625)
If we could go back to the classical definitions of the terms and recognize libertarians as liberals then it'd be much better.

Libertarians aren't really classical liberals. They are much nuttier.

stephanie 05-12-2011 08:41 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208632)
Don't do it, Stephanie!

Heh, I'm not actually interested in arguing it, but I couldn't not respond at all. It's nice that we've now defined libertarians as the True Liberals and the True Conservatives. (Oddly enough, I like many things about both classical liberalism and conservatism, but I find libertarianism too much of an ideology, and a rather shallow one.)

That said, there are positives, as well as negatives, to being libertarian-leaning, but usually the views in question don't bear much resemblance to hard-core libertarianism.

operative 05-12-2011 08:56 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by stephanie (Post 208663)
Libertarians aren't really classical liberals. They are much nuttier.

If you go to the more extreme end (Rothbard) then you may have an argument. But Hayek is essentially in line with the classical liberals.

bjkeefe 05-12-2011 08:58 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by operative (Post 208673)
[...] But Hayek ...

Make it stop.

bjkeefe 05-13-2011 02:53 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by operative (Post 208021)
... I can't help but think that it would've been much better for us in virtually every conceivable way if we would've captured OBL and given him a Nuremberg-style tribunal.

In light of the recent news (via), I expect the operative to be singing a completely different tune, even if he will not do so publicly.

operative 05-13-2011 03:00 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208822)
In light of the recent news (via), I expect the operative to be singing a completely different tune, even if he will not do so publicly.

Keep reaching.

bjkeefe 05-13-2011 03:26 PM

Re: Canada Election Vlogging
 
Quote:

Originally Posted by TwinSwords (Post 207645)
I've been following this Canadian vlogger on YouTube for years. He's just posted a vlog on the recent elections:

— The Canadian Election - No Worries

I actually tried to get him to do an Apollo diavlog a year or so ago. He's quite brilliant.

The beginning of an onslaught? Wonkette has just hired a Canadian correspondent, Jordan Ginsberg. Here is his inaugural post, here is his author page, and here is his personal site.

I'd link to his Twitter feed, too, but it's fail whales a-go-go over there today.

bjkeefe 05-14-2011 10:58 AM

So, what were we talking about, when we were talking about bin Laden, anyway?
 
Here's yesterday's report from the Project for Excellence in Journalism's "New Media Index: May 2-6, 2011/Social Media React to Bin Laden’s Death." It's entertaining, for nerds like me, at least.

The second chart is my favorite:

http://www.journalism.org/sites/jour...3-52-24_PM.png

Interesting to observe the differences between that and the third one:

http://www.journalism.org/sites/jour...3-52-34_PM.png

Ocean 05-14-2011 02:32 PM

Re: So, what were we talking about, when we were talking about bin Laden, anyway?
 
The most amazing thing is that they have access to this data.

bjkeefe 05-14-2011 02:46 PM

Re: So, what were we talking about, when we were talking about bin Laden, anyway?
 
Quote:

Originally Posted by Ocean (Post 208942)
The most amazing thing is that they have access to this data.

Most of the data is available to the general public, at least in principle. Possibly all, if their Facebook data only comes from people who allow "anyone" access to their wall posts.

What's amazing to me is how it's gathered up in a short amount of time and analyzed automatically, given the highly unstructured nature of the data.

Some info on the software they use here; more starting here, on the personal site of the guy who developed the software. It'd be interesting to read independent assessments of the quality of the software.

==========

[Added] Per that last sentence, a couple of favorable informal reviews here and here.

Also, I'm going to guess the software's author (or the company's branding consultant) is a fan of Borges. (Search for crimson hexagon.)

chiwhisoxx 05-14-2011 03:09 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208676)
I don't know who Murray Rothbard is and I haven't read any Hayek so I'll mock instead of contribute

fixed

bjkeefe 05-14-2011 03:53 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by chiwhisoxx (Post 208950)
fixed

There's nothing to contribute when there's no discussion. And that's what it is when the operative invokes Hayek for the forty-eleventh time and you applaud: a mindless recitation of dogma and name-dropping of a source. It's no different from someone constantly yelling, "John 3:16! John 3:16! John 3:16!"

The superficiality and lack of thought that goes into those posts shows that the source is either horribly misunderstood or not worth reading in the first place. Since many people whom I respect considerably more than you two have said Hayek is worth reading, I'll conclude it's the former that's at play in this forum.

Now scurry off. The operative has been rapid responsinizin' all over this forum, and there's tribalistic back-patting a-plenty to be done. And since that's one of your two purposes for coming to this site, you'd best get to it.

operative 05-14-2011 04:29 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208953)
...

Shorter BJ:
Quote:

You're right that I haven't read Hayek.

bjkeefe 05-14-2011 06:55 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by operative (Post 208954)
[...]

So far as I can tell from the people who never stop invoking his name, I'm not missing much.

Consider how poor a sales job you're doing, if nothing else.

rfrobison 05-14-2011 11:06 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208962)
So far as I can tell from the people who never stop invoking his name, I'm not missing much.

Consider how poor a sales job you're doing, if nothing else.

This whole conversation reminds me of the old Monty Python gag. Just substitute You-Know-Who for "spam."

"You can have Hayek and egg; Hayek and sausage; Egg, sausage and Hayek; Hayek, Hayek, sausage and Hayek..."

Incidentally, I read The Road to Serfdom and loved it.

Guess I'm like the lady's husband: "Don't make a fuss, Darling. I'll eat your Hayek. I love it! I'm having Hayek, Hayek,Hayek,Hayek,Hayek, sausage and Hayek!"

I guess that makes you the wife (figuratively speaking, of course).

Op and Chiwi are the vikings.

rfrobison 05-14-2011 11:08 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by bjkeefe (Post 208962)
So far as I can tell from the people who never stop invoking his name, I'm not missing much.

Consider how poor a sales job you're doing, if nothing else.

This whole conversation reminds me of the old Monty Python gag. Just substitute You-Know-Who for "spam."

"You can have Hayek and egg; Hayek and sausage; Egg, sausage and Hayek; Hayek, Hayek, sausage and Hayek..."

Incidentally, I read The Road to Serfdom and loved it.

Guess I'm like the lady's husband: "Don't make a fuss, Darling. I'll eat your Hayek. I love it! I'm having Hayek, Hayek, Hayek, Hayek, Hayek, baked bean and Hayek!"

I guess that makes you the wife (figuratively speaking, of course).

Op and Chiwi are the vikings.

Enter Unit, wearing bowler cap: My lower intestines are filled with Hayek...

Jeff, as historian, speaks of Chiwi and Op's great victory at the Green Bloggingheads Cafι...

Ocean 05-14-2011 11:11 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by rfrobison (Post 208980)
This whole conversation reminds me of the old Monty Python gag. Just substitute You-Know-Who for "spam."

"You can have Hayek and egg; Hayek and sausage; Egg, sausage and Hayek; Hayek, Hayek, sausage and Hayek..."

Incidentally, I read The Road to Serfdom and loved it.

Guess I'm like the lady's husband: "Don't make a fuss, Darling. I'll eat your Hayek. I love it! I'm having Hayek, Hayek,Hayek,Hayek,Hayek, sausage and Hayek!"

I guess that makes you the wife (figuratively speaking, of course).

Op and Chiwi are the vikings.


You've got to stop consuming 日本酒. ;)

rfrobison 05-14-2011 11:14 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by Ocean (Post 208983)
You've got to stop consuming 日本酒. ;)

Yep, especially since its only 11:15 a.m. here!

Ocean 05-14-2011 11:21 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by rfrobison (Post 208984)
Yep, especially since its only 11:15 a.m. here!

I'm heading for a walk at the beach then.

rfrobison 05-14-2011 11:27 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Sounds nice. Which beach?

Ocean 05-15-2011 12:48 AM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
Quote:

Originally Posted by rfrobison (Post 208989)
Sounds nice. Which beach?

One too crowded. I'm back.

jimM47 05-15-2011 01:42 AM

"A Long Tradition"
 
[For some reason, I'm always late to comment on threads where I want to argue with David Frum, so apologies if this has been covered upthread, but...]

When Greenwald invokes John Adams, Frum counters that he is part of "that long American tradition that says that the realm of law is the realm where there is a sovereign . . . ." I think it is worth pointing out that, relatively speaking, this tradition is not so long, and not so American, as it might at first seem. It was not the tradition of America's founders. It was not the tradition that dominated America for much of its history, and I would argue that it is not the tradition that reflects the best, wisest and most distinctive aspects of the American tradition.

The founding generation looked to legal thinkers like Hugo Grotius, William Blackstone, and especially Emerich de Vattel. All of these thinkers understood sovereign states as having rights and duties with respect to each other (and each others' nationals) that were of a legal character. All understood nations as bound, especially in dealings with foreign nationals, by legal norms of a transnational character. Part of the impetus of the constitutional convention, among others, was that under the Articles of Confederation, the United States was ill-equipped to ensure compliance with its international legal duties — which put the young and militarily weak national government in a precarious position.

The "natural law" view of international legal obligations retained dominance throughout much of the country's subsequent history. Federal caselaw in the period is littered with language asserting that "the law of nations" is part of our law, while others speak of the nation's duties to foreign countries. Treaties in the period allude to the recognition of these duties as well. In fact, it may interest those thinking about how to deal with foreign states harboring terrorists to learn that, in the aftermath of the Civil War, America (successfully) sued Britain for failing to take adequate steps to prevent its territory from being illegally used to outfit Confederate ships of war, including the CSS Alabama.

The major intellectual origin of Frum's sentiment lies not within America, but with the British utilitarians writing in the middle of the nineteenth century. David's comments closely parallel John Austin's famous theory that: law, properly so-called, is the command of an identifiable sovereign — further joining him in denying that international law is law. The story of how these ideas entered America is a complicated one, which in part has to due with the changes in the concept of sovereignty globally, but they enter, in part, through Oliver Wendell Holmes Jr., and other progressive movement legal thinkers, who were interested in altering the fundamentals of American law in order to maximizing the power of political actors. That conservatives like Frum (strike that: conservatives and Frum) have embraced this Austinian-Holmesian vision of law has a lot to do with rejecting a more modern Left-liberal vision of the law, symbolized on the domestic front by the activism of the Warren Court, and symbolized on the international scene by certain misguided aspects of the Nuremberg trials and by attempts to "make war illegal."

There is a lot to criticize in this modern vision, on both the domestic and international realms. Particularly the pretense (notably represented on this site by Bob Wright) that far more international law, governing far more actions of sovereigns, exists, or will exist, than can truly and plausibly be said to represent genuine opinion juris (a critique that I think applies even to written treaty law). But just because you reject a wrongheaded modern idea for a less modern idea, doesn't mean you are being a good conservative, if what you instead do is embrace an equally wrongheaded and still relatively modern idea.

All of this is by way of saying that the idea that America's interactions with foreign governments and America's behavior abroad should be constrained by rule of law principles, is neither recent, foreign, nor unwise, but reflects a deep commitment of this country and is embedded into our distinctive history and laws. None of that is to say that there weren't complicated realities that qualified the idea of international rule of law — there were. None of this is to say that the dictates of genuine international law are not subject to heavy question and competing interpretations on the relevant points — they are. But it is to say that it is disappointing to see that the reaction from leading figures on the Right isn't to engage these issues, but to simply abandon or deny a key part of our American heritage.

chiwhisoxx 05-15-2011 03:47 AM

Re: "A Long Tradition"
 
Quote:

Originally Posted by jimM47 (Post 209020)
[For some reason, I'm always late to comment on threads where I want to argue with David Frum, so apologies if this has been covered upthread, but...]

When Greenwald invokes John Adams, Frum counters that he is part of "that long American tradition that says that the realm of law is the realm where there is a sovereign . . . ." I think it is worth pointing out that, relatively speaking, this tradition is not so long, and not so American, as it might at first seem. It was not the tradition of America's founders. It was not the tradition that dominated America for much of its history, and I would argue that it is not the tradition that reflects the best, wisest and most distinctive aspects of the American tradition.

The founding generation looked to legal thinkers like Hugo Grotius, William Blackstone, and especially Emerich de Vattel. All of these thinkers understood sovereign states as having rights and duties with respect to each other (and each others' nationals) that were of a legal character. All understood nations as bound, especially in dealings with foreign nationals, by legal norms of a transnational character. Part of the impetus of the constitutional convention, among others, was that under the Articles of Confederation, the United States was ill-equipped to ensure compliance with its international legal duties — which put the young and militarily weak national government in a precarious position.

The "natural law" view of international legal obligations retained dominance throughout much of the country's subsequent history. Federal caselaw in the period is littered with language asserting that "the law of nations" is part of our law, while others speak of the nation's duties to foreign countries. Treaties in the period allude to the recognition of these duties as well. In fact, it may interest those thinking about how to deal with foreign states harboring terrorists to learn that, in the aftermath of the Civil War, America (successfully) sued Britain for failing to take adequate steps to prevent its territory from being illegally used to outfit Confederate ships of war, including the CSS Alabama.

The major intellectual origin of Frum's sentiment lies not within America, but with the British utilitarians writing in the middle of the nineteenth century. David's comments closely parallel John Austin's famous theory that: law, properly so-called, is the command of an identifiable sovereign — further joining him in denying that international law is law. The story of how these ideas entered America is a complicated one, which in part has to due with the changes in the concept of sovereignty globally, but they enter, in part, through Oliver Wendell Holmes Jr., and other progressive movement legal thinkers, who were interested in altering the fundamentals of American law in order to maximizing the power of political actors. That conservatives like Frum (strike that: conservatives and Frum) have embraced this Austinian-Holmesian vision of law has a lot to do with rejecting a more modern Left-liberal vision of the law, symbolized on the domestic front by the activism of the Warren Court, and symbolized on the international scene by certain misguided aspects of the Nuremberg trials and by attempts to "make war illegal."

There is a lot to criticize in this modern vision, on both the domestic and international realms. Particularly the pretense (notably represented on this site by Bob Wright) that far more international law, governing far more actions of sovereigns, exists, or will exist, than can truly and plausibly be said to represent genuine opinion juris (a critique that I think applies even to written treaty law). But just because you reject a wrongheaded modern idea for a less modern idea, doesn't mean you are being a good conservative, if what you instead do is embrace an equally wrongheaded and still relatively modern idea.

All of this is by way of saying that the idea that America's interactions with foreign governments and America's behavior abroad should be constrained by rule of law principles, is neither recent, foreign, nor unwise, but reflects a deep commitment of this country and is embedded into our distinctive history and laws. None of that is to say that there weren't complicated realities that qualified the idea of international rule of law — there were. None of this is to say that the dictates of genuine international law are not subject to heavy question and competing interpretations on the relevant points — they are. But it is to say that it is disappointing to see that the reaction from leading figures on the Right isn't to engage these issues, but to simply abandon or deny a key part of our American heritage.

Good post. I agree with almost of all it, but just want to add a few things. I think Frum's idea of law's only being valid where a sovereign is present starts way before Austin; this all starts with Hobbes. A huge part of the Hobbesian construction of society is the sovereign, from which control of the legal structure emanates. Austin has a much less expansive view of what this sovereign can and should do, but it still owes much to Hobbes. I think another thinker who is an effective critic of this Hobbesian type approach is H.L.A. Hart. Obviously, he wasn't influential on the founders as he was born something 225 years after the revolution. However, he is both an effective in criticizing the Austin-esque approach, and laying out his alternative legal positivism, which seems to much more closely mirror the history of the United States.

I think it's also worth pointing out that not all of the modern left/liberal law has evolved in a more cosmopolitan direction. Rawls, who is obviously tremendously influential on modern liberal theory, wouldn't go so far as to embrace pure cosmopolitanism. He recognized borders as a necessity, and even made a, at least in my opinion, backwards and almost vaguely racist argument about the need for laws to be specific to "peoples"; the French, the Germans, etc. in Law of People's. And none of this is supposed to be a counter to your post; I thought it was a pretty nice summary of jurisprudential history. I just wanted to fill in what I thought were a few holes.

jimM47 05-15-2011 06:09 AM

Re: "A Long Tradition"
 
Quote:

Originally Posted by chiwhisoxx (Post 209031)
Good post. I agree with almost of all it, but just want to add a few things. I think Frum's idea of law's only being valid where a sovereign is present starts way before Austin; this all starts with Hobbes. A huge part of the Hobbesian construction of society is the sovereign, from which control of the legal structure emanates. Austin has a much less expansive view of what this sovereign can and should do, but it still owes much to Hobbes. I think another thinker who is an effective critic of this Hobbesian type approach is H.L.A. Hart. Obviously, he wasn't influential on the founders as he was born something 225 years after the revolution. However, he is both an effective in criticizing the Austin-esque approach, and laying out his alternative legal positivism, which seems to much more closely mirror the history of the United States.

I think it's also worth pointing out that not all of the modern left/liberal law has evolved in a more cosmopolitan direction. Rawls, who is obviously tremendously influential on modern liberal theory, wouldn't go so far as to embrace pure cosmopolitanism. He recognized borders as a necessity, and even made a, at least in my opinion, backwards and almost vaguely racist argument about the need for laws to be specific to "peoples"; the French, the Germans, etc. in Law of People's. And none of this is supposed to be a counter to your post; I thought it was a pretty nice summary of jurisprudential history. I just wanted to fill in what I thought were a few holes.

The point about Hobbes is well-taken. With respect to Hart, I tend to think his theory is a poor fit with what I, personally, find important in the American legal tradition, but at the same time, his critique of Austin blunts any blame that can be laid at his doorstep for the wrong turn that I accuse Frum of taking. (Similar reasoning accounts for other omissions.)

Florian 05-15-2011 07:33 AM

Re: "A Long Tradition"
 
Interesting post. Thank you. A few questions.

Quote:

Originally Posted by jimM47 (Post 209020)
The "natural law" view of international legal obligations retained dominance throughout much of the country's subsequent history. Federal caselaw in the period is littered with language asserting that "the law of nations" is part of our law, while others speak of the nation's duties to foreign countries.

Of course, this is true. So-called natural law and international law have been more or less synonymous since the 17th century. Are any of the current SC justices beholden to this understanding of the US law and the constitution?


Quote:

That conservatives like Frum (strike that: conservatives and Frum) have embraced this Austinian-Holmesian vision of law has a lot to do with rejecting a more modern Left-liberal vision of the law, symbolized on the domestic front by the activism of the Warren Court, and symbolized on the international scene by certain misguided aspects of the Nuremberg trials and by attempts to "make war illegal.".
I don't see a parallel between the "activism" of the Warren Court and the misguided aspects of the Nuremberg trials. Trying to make war "illegal" makes no sense in the absence of a legal authority, i.e. something like a Kantian federation of republics, that could impose arbitration in the case of conflicts between states or between governments and peoples. How is that like the legislation promoted by the Warren Court?


Quote:

There is a lot to criticize in this modern vision, on both the domestic and international realms. Particularly the pretense (notably represented on this site by Bob Wright) that far more international law, governing far more actions of sovereigns, exists, or will exist, than can truly and plausibly be said to represent genuine opinion juris (a critique that I think applies even to written treaty law). But just because you reject a wrongheaded modern idea for a less modern idea, doesn't mean you are being a good conservative, if what you instead do is embrace an equally wrongheaded and still relatively modern idea..
You could also argue that the Hobbesian/Austinian conception of untrammeled sovereignty is more compatible with the neo-conservative vision of American power.

jimM47 05-16-2011 03:48 AM

Re: "A Long Tradition"
 
Quote:

Originally Posted by Florian (Post 209037)
Are any of the current SC justices beholden to this understanding of the US law and the constitution?

That's a difficult question. The Court recognizes that international law is law and can be made binding domestically, but it takes few cases on the topic and decides them cautiously and ambiguously, so it is hard to distill the Justices' broader philosophies. There are certainly Circuit Judges beholden to that view. The leading cases are Banco Nacional de Cuba v. Sabatino (1964) (Act of State doctrine) and Sosa v. Alvarez-Machain (2004) (Int'l Law Torts). Each in their own way hews a cautious course. Sabatino rejected modern anti-expropriation norms in favor of a traditional immunity claim. Sosa recognized the appropriateness of lawsuits for violation of international law, but validated only jus cogens norms against torture, genocide/CAH, piracy, and slave-trading (and not apartheid), and expressed skepticism for modern international law. My ballpark estimate is that about 2/3ds of citations to Sosa in the lower courts are to its statement that the Univeral Declaration of Human Rights is not binding law. The precise role of international law in U.S. domestic law is really complicated by federalism and separation of powers concerns — the U.S. has 51 distinct sovereigns, and Erie Railroad v. Tompkins (1938) decided that any law must be attached to a particular sovereign by some positive act.

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I don't see a parallel between the "activism" of the Warren Court and the misguided aspects of the Nuremberg trials. Trying to make war "illegal" makes no sense in the absence of a legal authority, i.e. something like a Kantian federation of republics, that could impose arbitration in the case of conflicts between states or between governments and peoples. How is that like the legislation promoted by the Warren Court?
As a conceptual matter, trying to make war illegal in the absence of an enforcement authority makes as much sense as trying to make anything a sovereign state does illegal in absence of an enforcement authority — international law does purport to make state actions illegal and nations treat it as imposing obligations on them. Of course, as a conceptual matter, there is nothing problematic about the prohibition of alcohol or requiring belief in a particular religion — but they are wildly unrealistic laws in most cultural contexts. People won't act as if these laws have moral force upon them, which in the international law realm is destructive of the opinio juris that makes the rule into law.

I'm not sure there is actually any similarity between trying to promote modern sovereignty-abrogating international law and the project the Warren Court was engaged in. That's an interesting question to ponder. The connection I'm trying to draw is that the reaction of a faction conservatives was the same to both of them — an embrace of an Austinian conception of law.

stephanie 05-16-2011 08:59 AM

Re: "A Long Tradition"
 
Quote:

Originally Posted by jimM47 (Post 209020)
[For some reason, I'm always late to comment on threads where I want to argue with David Frum, so apologies if this has been covered upthread, but...]

When Greenwald invokes John Adams, Frum counters that he is part of "that long American tradition that says that the realm of law is the realm where there is a sovereign . . . ." I think it is worth pointing out that, relatively speaking, this tradition is not so long, and not so American, as it might at first seem. It was not the tradition of America's founders. It was not the tradition that dominated America for much of its history, and I would argue that it is not the tradition that reflects the best, wisest and most distinctive aspects of the American tradition.

The founding generation looked to legal thinkers like Hugo Grotius, William Blackstone, and especially Emerich de Vattel. All of these thinkers understood sovereign states as having rights and duties with respect to each other (and each others' nationals) that were of a legal character. All understood nations as bound, especially in dealings with foreign nationals, by legal norms of a transnational character. Part of the impetus of the constitutional convention, among others, was that under the Articles of Confederation, the United States was ill-equipped to ensure compliance with its international legal duties — which put the young and militarily weak national government in a precarious position.

The "natural law" view of international legal obligations retained dominance throughout much of the country's subsequent history. Federal caselaw in the period is littered with language asserting that "the law of nations" is part of our law, while others speak of the nation's duties to foreign countries. Treaties in the period allude to the recognition of these duties as well. In fact, it may interest those thinking about how to deal with foreign states harboring terrorists to learn that, in the aftermath of the Civil War, America (successfully) sued Britain for failing to take adequate steps to prevent its territory from being illegally used to outfit Confederate ships of war, including the CSS Alabama.

The major intellectual origin of Frum's sentiment lies not within America, but with the British utilitarians writing in the middle of the nineteenth century. David's comments closely parallel John Austin's famous theory that: law, properly so-called, is the command of an identifiable sovereign — further joining him in denying that international law is law. The story of how these ideas entered America is a complicated one, which in part has to due with the changes in the concept of sovereignty globally, but they enter, in part, through Oliver Wendell Holmes Jr., and other progressive movement legal thinkers, who were interested in altering the fundamentals of American law in order to maximizing the power of political actors. That conservatives like Frum (strike that: conservatives and Frum) have embraced this Austinian-Holmesian vision of law has a lot to do with rejecting a more modern Left-liberal vision of the law, symbolized on the domestic front by the activism of the Warren Court, and symbolized on the international scene by certain misguided aspects of the Nuremberg trials and by attempts to "make war illegal."

There is a lot to criticize in this modern vision, on both the domestic and international realms. Particularly the pretense (notably represented on this site by Bob Wright) that far more international law, governing far more actions of sovereigns, exists, or will exist, than can truly and plausibly be said to represent genuine opinion juris (a critique that I think applies even to written treaty law). But just because you reject a wrongheaded modern idea for a less modern idea, doesn't mean you are being a good conservative, if what you instead do is embrace an equally wrongheaded and still relatively modern idea.

All of this is by way of saying that the idea that America's interactions with foreign governments and America's behavior abroad should be constrained by rule of law principles, is neither recent, foreign, nor unwise, but reflects a deep commitment of this country and is embedded into our distinctive history and laws. None of that is to say that there weren't complicated realities that qualified the idea of international rule of law — there were. None of this is to say that the dictates of genuine international law are not subject to heavy question and competing interpretations on the relevant points — they are. But it is to say that it is disappointing to see that the reaction from leading figures on the Right isn't to engage these issues, but to simply abandon or deny a key part of our American heritage.

I haven't had a chance to listen to Frum yet, so can't react specifically to your comments on whatever he said, but in general I agree, and think the points you make are important ones.

popcorn_karate 05-19-2011 08:03 PM

Re: Law, Power, and Bin Laden (Glenn Greenwald & David Frum)
 
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Originally Posted by operative (Post 208577)
No.

yes.


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